Judge orders Mt. Soledad cross removed but allows appeals

The cross atop Mt. Soledad in San Diego has been at the center of a political and legal dispute for more than two decades. A judge Thursday ordered it taken down as a violation of the separation of church and state. But he has allowed time for appeals. (Mark Boster / Los Angeles Times)

SAN DIEGO -- After two decades of legal and political wrangling, a federal judge Thursday ordered the cross atop Mt. Soledad removed within 90 days as a violation of the separation of church and state.

But U.S. District Judge Larry Burns stayed the removal order so that those defending the cross have time to appeal.

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Built in 1954, the 43-foot cross is one of the most visible landmarks in San Diego. Starting in the early 1990s, plaques honoring military veterans have been placed on walls surrounding the base of the cross.

Defenders of the cross have argued that it is a war memorial, not exclusively a religious symbol.

In 2011, the 9th Circuit Court of Appeals ruled that the cross violated the 1st Amendment. In 2012, the U.S. Supreme Court declined to hear the issue, sending the case back to the trial court in San Diego.

"In spite of many secular changes to the memorial, its long sectarian history, as found by the 9th Circuit, effectively prevents the government from purging the religious connotation in any other way," Burns wrote.

Jewish war veterans and the ACLU have argued that having the cross on public property is an unconstitutional endorsement of religion.

A war memorial "should stand for all of those who served," said Norma Chavez-Peterson, executive director of the ACLU of San Diego and Imperial counties.

One of the strongest supporters of keeping the cross has been Rep. Duncan Hunter (R-Alpine), a Marine veteran of Iraq and Afghanistan.

Hunter's spokesman, Joe Kasper, said Burns' ruling was not unexpected and "the true test will come if and when the Supreme Court decides to take the case."

"Without the cross, the memorial loses its identity as an unforgettable symbol of appreciation to generations of sacrifice," Kasper said. "It's still too soon to say that the cross won't stay right where it is."

The Congress voted to transfer ownership of the cross from the city to the federal government but the 9th Circuit struck down the transfer as unconstitutional.

The decision on whether to appeal Burns' ruling will be made by the Department of Justice.